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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Delano Rafael Cooley,

Sr., Appellant.

Appeal From Greenville County

Thomas J. Ervin, Circuit Court Judge

Opinion No. 25184

Heard June 6, 2000 - Filed August 14, 2000

REVERSED

Beattie B. Ashmore, of Ashmore & Yarborough, P.A.,

and James F. Brehm, both of Greenville, for

appellant.

Attorney General Charles M. Condon, Assistant Deputy

Attorney General Salley W. Elliott, Assistant Attorney

General J. Benjamin Aplin, all of Columbia, and Solicitor

Robert M. Arial, of Greenville, for respondent.

CHIEF JUSTICE TOAL: Appellant Delano Rafael Cooley, Sr.,

("Defendant") was convicted of voluntary manslaughter in the death of his wife

Donna Cooley ("Victim"). He has appealed. We reverse.

p.498

FACTUAL/PROCEDURAL BACKGROUND

On October 26,1996, Defendant shot and killed Victim as she sat at their

dinner table. At trial, Defendant claimed the gun fired accidently while he was

showing Victim that it was unloaded. There were no witnesses to the killing, but

two of the couple's three young children were in the home at the time of the

incident.

One of the children, Delano Cooley, Jr., was nine when his mother was

shot and eleven when he testified at trial. He testified the shooting happened

on a Sunday. He and Victim, along with the youngest child, had attended

church that morning without Defendant who stayed home to watch football on

television. That afternoon, the witness and Victim had also gone to the store

and gotten water for their house.

Young Cooley testified that Defendant and Victim were "fussing"

throughout the day. He testified Defendant accused Victim of having an

adulterous affair. At one point in the afternoon, young Cooley testified that

Defendant went outside, fired his shotgun into the air, and then returned to

threaten Victim stating "That's how it will be" and "I'm not playing with you.

I will shoot you." The argument continued until just before the fatal shooting of

Victim.

Corey Butler, the oldest child of Defendant and Victim, also testified. His

testimony concerned the relationship between his parents in the years prior to

the shooting. Butler testified that his parents constantly argued. He told the

jury that his father had often physically assaulted his mother and the police

were regularly called to the house. Butler testified he moved in with his

grandmother two years prior to the shooting because he had gotten into fistfights

with his father while trying to protect his mother. In particular, Butler testified

on many occasions Defendant would hold a knife to Victim's throat and threaten

to kill her and then kill himself.

At the trial's conclusion, Defendant requested the judge charge the jury on

involuntary manslaughter and the judge granted his request. In response, the

State requested a jury charge on voluntary manslaughter. Defendant opposed

the voluntary manslaughter charge contending that the argument between

Defendant and Victim could not rise to the level necessary to justify a voluntary

manslaughter charge. The trial judge disagreed and charged the jury on

voluntary manslaughter. The jury convicted Defendant of voluntary

manslaughter. Defendant has appealed and the issues before the Court are:

p.499

I. Did the trial court err in charging the jury on voluntary

manslaughter?

II. Did the trial court err in allowing Defendant's oldest son, who had

not lived with the family in two years, to testify about the nature of

their relationship?

LAWANALYSIS

I. The Voluntary Manslaughter Jury Charge

Voluntary manslaughter is the unlawful killing of a human being in the

sudden heat of passion upon sufficient legal provocation. State v. Cole, 338 S.C.

97, 525 S.E.2d 511(2000). Both heat of passion and sufficient legal provocation

must be present at the time of the killing. Id. The provocation must be such as

to render the mind of an ordinary person incapable of cool reflection and produce

an uncontrollable impulse to do violence. See id.

The trial judge in this case should not have given a voluntary

manslaughter jury charge because the record contained no evidence to support

a finding of sufficient legal provocation. The law to be charged must be

determined from the evidence presented at trial. State v. Lee, 298 S.C. 362, 380

S.E.2d 834 (1989). The State argues the following evidence supported giving the

voluntary manslaughter charge:

1. Defendant and Victim were arguing throughout the afternoon of the

killing;

2. The argument was over Defendant's belief that Victim was having

an adulterous affair;

3. At one point in the argument, Defendant fired the gun in the

backyard and then threatened to kill Victim; and

4. Defendant and Victim were arguing minutes before the gunshot

that killed Victim.

The State points to no evidence of Victim provoking Defendant other than her

role in the alleged argument with Defendant. Furthermore, the State

erroneously focuses on Defendant's firing the gun in the backyard. Defendant's

own actions, no matter how outrageous or violent, cannot legally provoke

p. 500

himself.

If we accept the State's theory of what happened that afternoon, the

argument between Defendant and Victim was about alleged marital infidelity.

While adultery may, in some instances, serve as sufficient legal provocation to

warrant a voluntary manslaughter charge, spousal adultery is not a license to

kill. See State v. Gadsden, 314 S.C. 229, 233, 442 S.E.2d 594, 597(1994). In

general, South Carolina has allowed martial infidelity to support a charge of

marital voluntary manslaughter only when the killer finds the other spouse and

paramour in a guilty embrace or flagrantly suggestive situation. See State v.

Herring, 118 S.C. 386,110 S.E. 668 (1921); but see State v. Martin, 216 S.C. 129,

57 S.E.2d 55 (1949) (finding evidence of the husband's belief that the deceased

had repeatedly and violently raped his wife and was then taunting them

supported a voluntary manslaughter charge). The killing must also happen so

soon after the discovery of the affair that the spouse does not have time to coolly

reflect on the situation. See Gadsen, 314 S.C. at 233, 442.S.E.2d at 597.

The State's theory, even if true, is insufficient to warrant a charge of

voluntary manslaughter because the State made no allegation that Defendant

actually encountered Victim in an adulterous situation. At most, Victim may

have confessed to adultery, an admission we find very unlikely due to the lack

of any evidence produced at trial of Victim having an affair. Furthermore, a

verbal confession of adultery, no matter what the content, would be insufficient

to warrant a voluntary manslaughter charge. See State v. Byrd, 323 S.C. 319,

322, 474 S.E.2d 430, 432 (1996)("Where death is caused by the use of a deadly

weapon, words alone, however opprobrious, are not sufficient to constitute a

legal provocation."). Therefore, even if the State's allegations about the

argument are taken as true, they do not support the giving of a voluntary

manslaughter charge because the allegations do not rise to the level of sufficient

legal provocation.

II. Corey Butler's Testimony

Defendant argues the trial court erred in allowing his son to testify about

previous episodes of spousal abuse, including incidents where Defendant held

a knife to Victim's throat and threatened to kill her. We agree.

Recently, this Court reiterated the rule that "[i]n homicide cases, evidence

that the accused and the decedent had previous difficulty is admissible. The

evidence is admissible to show the animus of the parties and to aid the jury in

deciding who was the probable aggressor." State v. Taylor, 333 S.C. 159, 168,

p.501

508 S.E.2d 870, 874 (1998). Here, while it is true that no issue exists about the

identity of a probable aggressor, the testimony would be relevant to proving the

"animus of the parties," specifically the abusive marital relationship between

Defendant and Victim. See State v. Clinkscales, 231 S.C. 650, 99 S.E.2d 663

(1957)(finding testimony about prior difficulties between a husband and wife was

admissible against husband in a murder case as long as specific details were not

revealed).

However, although evidence is relevant, it should be excluded where the

danger of unfair prejudice substantially outweighs its probative value. Rule

403, SCRE. In the current case, Butler testified about events that occurred

several years prior to the date of the killing. While we recognize that a trial

judge is accorded broad discretion in ruling on the admissibility of the testimony,

the remoteness in time of these events make them so prejudicial that Butler's

testimony about his parent's marital relationship should have been excluded.

See State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999)(excluding evidence of

Defendant's bad acts that occurred more than one year before the crime on trial).

III. Effect of the Error

This Court is aware of the profound consequences of reversing Defendant's

voluntary manslaughter conviction. When the jury convicted petitioner of the

lesser included offense of voluntary manslaughter, in essence, he was acquitted

of the murder charge. See Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144

(1992)(holding that a conviction for voluntary manslaughter acts as an implicit

acquittal of murder). On retrial, the constitutional prohibition against double

jeopardy prevents Defendant from being tried again for murder because he did

not waive this defense by making a successful appeal of his conviction. Id.

Furthermore, based on the testimony presented at Defendant's trial, the result

of our holding here is that without any evidence of legal provocation Defendant

cannot be retried on the charge of voluntary manslaughter. Thus, retrial will be

limited to the charge of involuntary manslaughter.

For most of our State's history, if a defendant was indicted for murder and

convicted of manslaughter he could be retried for murder when a new trial was

ordered based on the defendant's own motion. See, e.g., State v. Gillis, 73 S.C.

318, 53 S.E. 487 (1906). However, in applying the federal Fifth Amendment, the

United States Supreme Court has ruled that double jeopardy prevents states

from retrying defendants for greater offenses once they have "run the gauntlet"

on the greater offense and have not been convicted. See Green v. United States,

355 U.S. 184 (1957). For example, in a situation nearly identical to the current

p.502

one, the United States Supreme Court held the retrial of a defendant for murder,

after an earlier guilty verdict on the lesser included offense of voluntary

manslaughter had been set aside because of a trial error, constituted double

jeopardy in violation of the Fifth and Fourteenth Amendments. See Price v.

Georgia, 398 U.S. 323(1970).

Since the jury heard no evidence of legal provocation, Defendant's

voluntary manslaughter conviction suggests that the jury may have

compromised between murder and involuntary manslaughter or accident in

reaching their verdict. As such, it is fair to assume that at least one member of

the jury may have believed the State's position that Defendant murdered Victim

by shooting her with a shotgun in the face at close range. However, due to the

error in granting the solicitor's request for a voluntary manslaughter charge,

Defendant will not have to face a jury of his peers on the charge of murder again.

This is a cautionary tale for solicitors as to the pitfalls of requesting a potential

"compromise" charge which is unsupported by the evidence. Although the result

is an unsatisfactory one, this situation is controlled by the precedent of the

United States Supreme Court which we cannot ignore.

CONCLUSION

Based on the foregoing, we REVERSE Defendant's conviction.

MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.

p.503